Commission Decision:On April 24, 2009, the Alaska Public Offices Commission heard and approved this advisory opinion request by a vote of 4 to 0, with minor editorial changes that did not affect the result.

QUESTION PRESENTED:

Is there a public official financial disclosure statement requirement under AS 39.50 for the newly created position of Alaska Gasline Inducement Act Coordinator?

SHORT ANSWER:

Yes. The Alaska Gasline Inducement Act Coordinator is an assistant to the governor, and as such is subject AS 39.50.

FACTS

Mr. Myers is the Alaska Gasline Inducement Act Coordinator (“Coordinator”) and has requested an Advisory Opinion under AS 15.13.374 on the public official financial disclosure (“POFD”) requirement for his position. Mr. Myers has provided APOC staff with a copy of the January 7, 2009 letter which recommended appointment of the Coordinator. The Coordinator position was created by AS 43.90.250.

ANALYSIS

AS 39.50.020 requires public officials to file a statement giving their income sources and business interests. “Public Official” is defined at AS 39.50.200(a)(9) to mean:

a judicial officer;

the governor or the lieutenant governor;

a person hired or appointed in a department in the executive branch as;

the head or deputy head of the department;

the director or deputy director of a division;

a special assistant to the head of the department;

a person serving as the legislative liaison for the department;

an assistant to the governor or lieutenant governor;

the chair or a member of a state commission or board;

state investment officers and the state comptroller in the Department of Revenue;

the chief procurement officer appointed under AS 36.30.010;

the executive director of the Alaska Workforce Investment Board;

each appointed or elected municipal officer; and

the members of the board of trustees, the executive director and the investment officers of the Alaska Permanent Fund Corporation.

The position of the Alaska Gasline Inducement Act Coordinator position was created by by AS 43.90.250(a), which states:

There is created in the Office of the Governor the position of Alaska Gasline Inducement Act coordinator. Administrative support for the position shall be provided by the Office of the Governor. The position shall continue until one year after commencement of commercial operations of the project.

There is no description of the AGIA coordinator’s job duties in the statute. However, we believe that the AGIA coordinator is in essence an assistant to the governor, and therefore comes under the definition of a public official. An “assistant to the governor or lieutenant governor” is broadly defined as “any executive, legislative, special, administrative, or press assistant to the governor or lieutenant governor, and any person similarly employed in a policy-making position.” AS 39.50.200(a)(1).

The position of AGIA coordinator is created in the office of the governor, the coordinator reports to the governor, and serves at the governor’s pleasure. AS 43.90.250(b). There are multiple state agencies involved in AGIA. Coordinating among these agencies and the governor’s office involves a high level of executive expertise and specialized knowledge. The broad definition of an assistant to the governor is designed to include any one in the governor’s office with the level of responsibility associated with the AGIA Coordinator position.

Moreover, a gas pipeline, or the lack of one, will have an enormous impact upon the State and its residents. It is entirely appropriate that the official charged with coordinating such an undertaking be subject to the same financial disclosure requirements that affect a deputy division director, or an administrative law judge.

CONCLUSION

The Alaska Gasline Inducement Act Coordinator is subject to AS 39.50 reporting requirements and must file a POFD statement based upon a specific position analysis.

COMMISSION DECISION

On April 24, 2009, the Alaska Public Offices Commission heard and approved this advisory opinion request by a vote of 4 to 0, with minor editorial changes that did not affect the result.

APPLICABLE LAW:

Sec. 39.50.010. Findings and purpose. (a) It is declared by the people of the State of Alaska that the purposes of this chapter are

(1) to discourage public officials from acting upon a private or business interest in the performance of a public duty;

(2) to assure that public officials in their official acts are free of the influence of undisclosed private or business interests;

(3) to develop public confidence in persons seeking or holding public office, enhance the dignity of the offices and make them attractive to citizens who are motivated to public service; and

(4) to develop accountability in government by permitting public access to information necessary to judge the credentials and performance of those who seek and hold public office.

(b) The people of the State of Alaska declare that

(1) public office is a public trust that should be free from the danger of conflict of interest;

(2) the public has a right to know of the financial and business interests of persons who seek or hold public office;

(3) a compelling state interest requires that candidates for office and office holders disclose their personal and business financial interests;

(4) reasonable disclosure requirements do not violate an individual's right to privacy when the individual seeks or holds public office and a compelling state interest in the disclosure exists; and

(5) reasonable disclosure requirements do not have the effect of chilling the exercise of the right of a qualified person to seek or hold public office. Sec. 39.50.030. Contents of statements. (a) Each statement must be an accurate representation of the financial affairs of the public official or candidate and must contain the same information for each member of the person's family, as specified in (b) and (d) of this section, to the extent that it is ascertainable by the public official or candidate.

(b) Each statement filed by a public official or candidate under this chapter must include the following:

(1) for all sources of income over $1,000 during the preceding calendar year, including taxable capital gains, and for all gifts from a single source with a cumulative value exceeding $250 in a calendar year, received by the person, the person's spouse or domestic partner, or the person's dependent child,

(A) each source of the income or gift;

(B) the recipient of the income or gift;

(C) the amount of the income or value of the gift;

(D) a brief statement describing whether the income was earned by commission, by the job, by the hour, or by some other method;

(E) the approximate number of hours worked to earn the income; and

(F) unless required by law to be kept confidential, a description sufficient to make clear to a person of ordinary understanding the nature of each service performed and the date the service was performed;

(2) the identity, by name and address, of each business in which the person, the person's spouse or domestic partner, or the person's dependent child has an interest or was a stockholder, owner, officer, director, partner, proprietor, or employee during the preceding calendar year, except that an interest of less than $1,000 in the stock of a publicly traded corporation need not be included;

(3) the identity and nature of each interest in real property, including an option to buy, owned at any time during the preceding calendar year by the person, the person's spouse or domestic partner, or the person's dependent child;

(4) the identity of each trust or other fiduciary relationship in which the person, the person's spouse or domestic partner, or the person's dependent child held a beneficial interest exceeding $1,000 during the preceding calendar year, a description and identification of the property contained in each trust or relation, and the nature and extent of the beneficial interest in it;

(5) any loan or loan guarantee of more than $1,000 made to the person, the person's spouse or domestic partner, or the person's dependent child, and the identity of the maker of the loan or loan guarantor and the identity of each creditor to whom the person, the person's spouse or domestic partner, or the person's dependent child owed more than $1,000; this paragraph requires disclosure of a loan, loan guarantee, or indebtedness only if the loan or guarantee was made, or the indebtedness incurred, during the preceding calendar year, or if the amount still owing on the loan, loan guarantee, or indebtedness was more than $1,000 at any time during the preceding calendar year;

(6) a list of all contracts and offers to contract with the state or an instrumentality of the state during the preceding calendar year held, bid, or offered by the person, the person's spouse or domestic partner, or the person's dependent child, a partnership, limited liability company, or professional corporation of which the person is a member, or a corporation in which the person or the person's spouse, domestic partner, or dependent child, or a combination of them, hold a controlling interest; and

(7) a list of all mineral, timber, oil, or any other natural resource lease held, or lease offer made, during the preceding calendar year by the person, the person's spouse or domestic partner, or the person's dependent child, a partnership, limited liability company, or professional corporation of which the person is a member, or a corporation in which the person or the person's spouse, domestic partner, or dependent child, or a combination of them, holds a controlling interest.

(c) [Repealed, Sec. 26 ch 25 SLA 1975].

(d) In addition to the requirements of (b) of this section, each statement filed under this chapter by a public official in the executive branch of state government other than the chair or a member of a state commission or board must include a disclosure of the formation or maintenance of a close economic association involving a substantial financial matter as required by this subsection. The disclosure must be sufficiently detailed so that a reader can ascertain the nature of the association. A public official shall disclose a close economic association with

(1) a legislator;

(2) a public official who is not an elected or appointed municipal officer;

(3) a lobbyist; or

(4) a public officer if the person required to make the disclosure is the governor or the lieutenant governor.

(e) If a public official required to disclose a close economic association under (d) of this section forms a close economic association after the date on which the public official files the financial disclosure statement required by (a) of this section, disclosure of the

Created on 12/22/2008 12:05:00 PM - 6 - AS 39.50.030 Public Official Financial Disclosure AS 39.50.030

association must be made to the commission within 60 days after the formation of the association.

(f) When making a disclosure under (d) of this section concerning a relationship with a lobbyist to whom the public official is married or who is the public official's domestic partner, the public official shall also disclose the name and address of each employer of the lobbyist and the total monetary value received from the lobbyist's employer. The public official shall report changes in the employers of the spouse or domestic partner within 48 hours after the change. In this subsection, "employer of the lobbyist" means the person from whom the lobbyist received money, or goods or services having a monetary value, for engaging in lobbying on behalf of the person.

(g) The requirements in this section for disclosures related to a person's domestic partner do not apply to an elected or appointed municipal officer.

(h) In this section,

(1) "close economic association" means a financial relationship that exists between a public official required to disclose a close economic association under (d) of this section and some other person or entity, including a relationship where the public official serves as a consultant or advisor to, is a member or representative of, or has a financial interest in an association, partnership, limited liability company, business, or corporation;

(2) "lobbyist" has the meaning given in AS 24.60.990 (a);

(3) "public officer" has the meaning given in AS 39.52.960 .

Sec. 15.13.374. Advisory opinion. (a) Any person may request an advisory opinion from the commission concerning this chapter, AS 24.45, AS 24.60.200 - 24.60.260, or AS 39.50.

(b) A request for an advisory opinion

(1) must be in writing or contained in a message submitted by electronic mail;

(2) must describe a specific transaction or activity that the requesting person is presently engaged in or intends to undertake in the future;

(3) must include a description of all relevant facts, including the identity of the person requesting the advisory opinion; and

(4) may not concern a hypothetical situation or the activity of a third party.

(c) Within seven days after receiving a request satisfying the requirements of (b) of this section, the executive director of the commission shall recommend a draft advisory opinion for the commission to consider at its next meeting.

(d) The approval of a draft advisory opinion requires the affirmative vote of four members of the commission. A draft advisory opinion failing to receive four affirmative votes of the members of the commission is disapproved.

Sec. 39.50.200. Definitions.

(a) In this chapter,

(1) "assistant to the governor or the lieutenant governor" includes any executive, legislative, special, administrative, or press assistant to the governor or lieutenant governor, and any person similarly employed in a policy-making position;

(2) "child" includes a biological child, an adoptive child, and a stepchild;

(3) "commission" means the Alaska Public Offices Commission created under AS 15.13.020(a);

(4) "domestic partner" means a person who is cohabiting with another person in a relationship that is like a marriage but that is not a legal marriage;

(5) "instrumentality of the state" means a state department or agency, whether in the legislative, judicial, or executive branch, including the University of Alaska;

(6) "judicial officer" means a person appointed as a justice to the supreme court or as a judge to the court of appeals, superior court, district court, or magistrate court;

(7) "mother or father" includes a biological parent, an adoptive parent, and a step-parent;

(8) "municipal officer" includes a borough or city mayor, borough assemblyman, city councilman, school board member, elected utility board member, city or borough manager, members of a city or borough planning or zoning commission within a home rule or general law city or borough, or a unified municipality;

(9) "public official" means

(A) a judicial officer;

(B) the governor or the lieutenant governor;

(C) a person hired or appointed in a department in the executive branch as

(i) the head or deputy head of the department;

(ii) the director or deputy director of a division;

(iii) a special assistant to the head of the department;

(iv) a person serving as the legislative liaison for the department;

(D) an assistant to the governor or the lieutenant governor;

(E) the chair or a member of a state commission or board;

(F) state investment officers and the state comptroller in the Department of Revenue;

(G) the chief procurement officer appointed under AS 36.30.010;

(H) the executive director of the Alaska Workforce Investment Board;

(I) each appointed or elected municipal officer; and

(J) the members of the board of trustees, the executive director, and the investment officers of the Alaska Permanent Fund Corporation;

Sec. 43.90.250. Alaska Gasline Inducement Act coordinator.

(a) There is created in the Office of the Governor the position of Alaska Gasline Inducement Act coordinator. Administrative support for the position shall be provided by the Office of the Governor. The position shall continue until one year after commencement of commercial operations of the project.

(b) The governor shall appoint a person to the position of Alaska Gasline Inducement Act coordinator. The individual serving as the Alaska Gasline Inducement Act coordinator may be removed from the position at the discretion of the governor.

On April 24, 2009, the Alaska Public Offices Commission heard and approved this advisory opinion request by a vote of 4 to 0, with minor editorial changes that did not affect the result.